provision goes. To quote: To quote: "And this just compensation, it will be noticed, is for the property and not to the owner." The case then continues to explain by saying that the other provisions of this Amendment are purely personal: "No person shall be held, etc., but "instead of continuing that form of statement and saying that no person shall be deprived of his property without just compensation, the personal element is left out, and the just compensation is to be a full equivalent for the property taken." Accordingly it is generally held, first, that there can be no recovery for an injury to business itself, for example, loss of profits due to competition or other cause, loss of "good-will" or loss of future or contingent profits; but, second, that if it can be shown that such business tended to enhance the market value of the property taken, evidence to this effect may be admitted to show what "just compensation" therefor is. Whitman v. Boston & Maine R. R. Co. (1861) 3 Allen 133. In Edwards v. Boston (1871) 108 Mass. 535, where land had been taken by the City of Boston under a statute to widen a certain street, the Court said: "Goodwill' of the business of a lessee or other owner is not property for which damages can be included; and is to be considered only so far as it tends to enhance the market value of the estate that is injured." But on the other hand, in considering whether the market value of the property is affected, the courts are not limited to the use to which the occupier is putting the property, but as stated in Maynard v. Northampton (1892) 157 Mass. 218: any and all of the uses to which the land considered as property may profitably be applied whether contemplated by the owner or not, may well be taken into account by the jury." Also, if certain facts exist which do enhance the value of the property, such facts can be considered even though the owner or occupier had no legal right to have them continue in existence. In N. Y. N. H. & H. Ry. Co. et al. v. Blocker et al. (1901) 178 Mass. 386, at the time of the taking of the plaintiff's land, spur tracks connected the coal-yard on it with the main railroad, and though the railroad had a right to remove them at any time, it was held that the fact of their being there could be taken into consideration in determining the market value: "the fact that it is done there, and is likely to continue to be done there, is a fact which affects the market value of the land."

66

Evidence is not, however, admissible to show that business will be diminished by competition. Petition of Mount Washington Road Co. (1857) 53 N. H., 134. In this case the plaintiff, a hotel keeper, who had built a bridle path to the summit of the mountain, was not allowed to show that the building of a carriage road would injure his business of hiring out saddle-horses. In Troy & Boston R. R. Co. v. Northern Turnpike Co. (1852) 16 Barb., 100, conjectures by witnesses as to the probable injury to a turnpike business by the defendant railroad were not admitted.

If the property is peculiarly adapted naturally, or by its owner to any special use, the fact may be introduced. Dupuis v. C. & N. W. Ry. Co. (1885) 115 Ill., 97. Pittsburgh & Western Ry. Co. v. Patterson (1884) 107 Pa. St., 461. Such a case was that of King v. Minneapolis Union Ry. Co. (1884) 32 Minn., 224, where the plaintiff had fitted up his property for a plough factory, and made it particularly adapted for this purpose.

Some courts, not necessarily accepting the interpretation of the constitutional provision given in Monongahela Nav. Co. v. U. S. endeavor to reconcile the cases by saying that in order for injuries to be considered such a taking as to entitle the owner to compensation, they must be actual injuries that reduce the market value of the property. They must not be merely speculative, prospective or contingent; and, therefore injuries to business are usually too remote to be considered in estimating the amount of compensation, because they depend too much on contingencies that are uncertain and speculative. This test, however, fails to account for those adjudicated cases where, notwithstanding an actual and direct injury, no compensation has been allowed. They can only be explained on the theory that business is not property and therefore, under the interpretation put upon the constitutional provisions by the Monongahela Co. case, not within its protection.

Now it is true that we generally think and speak of property as a corporeal thing, some thing tangible. But, as is said by Mr. Lewis in his work on Eminent Domain §§ 54 et seq. "A little reflection will suffice to convince anyone that property is not a corporeal thing itself of which it is predicated, but certain rights in or over the thing. * * * We must, therefore, look beyond the thing itself, beyond the mere corporeal object, for the true idea of property. Property may be defined as certain rights in things which pertain to persons, and which are created and sanctioned by law. These rights are the right of user, the right of exclusion, and the right of disposition." Taking this view of " property" it seems consistent to agree with Mr. Sedgwick in his work on Constitutional Law (2 ed.) § 247, where he discusses the interpretation of this clause of the constitution. He says: "It seems to be settled that, to entitle an owner to protection under this clause, the property must actually be taken in the physical sense of the word, and the proprietor is not entitled to claim remuneration for indirect or consequential damage, no matter how serious or how clearly or unquestionably resulting from the exercise of the power of Eminent Domain." After thus stating the law, he continues, "It seems very difficult in reason to show why the State should not pay for property of which it destroys or impairs the value, as well as for what it physically takes. If by reason of a consequential damage the value of real estate is positively diminished, it does not appear arduous to prove that in point of fact, the owner is deprived of property, though a particular piece of property be not actually taken. This view is taken in Eaton v. Ry. Co. (1872) 51 N. H., 504, where the defendant, after making compensation for that part of the plaintiff's land which it took, removed a natural barrier on adjoining property and thereby caused an overflow of water on the plaintiff's land. court allowed a recovery on the ground that the plaintiff had a property right to be protected by this natural barrier, and that therefore the destruction of it amounted to a further taking by the defendant over and above what it had already paid for, and that therefore the plaintiff was entitled to further compensation under the Constitution. This case and its reasoning has been followed in some jurisdictions, though the general rule of law seems to be the other way. points to this as the new rule gradually taking the place of the other;

The

Lewis

and see 2 COLUMBIA LAW REVIEW, 383. It would be a more logical result, certainly, to say that where a man's right of user, of exclusion or of disposition over a thing, whether land, business or anything else, corporeal or incorporeal, is taken away or destroyed under Eminent Domain, such person should have "just compensation under the Constitution in every case where he would have had an action for damages against a private person under the common law.

CARRIER'S DUTY TOWARDS PASSENGERS AND LICENSEES.-A recent Texas case, Houston & Texas Central R. Co. v. Phillis (1902) 69 S. W. 994 raises an interesting question. The plaintiff and his wife were assaulted by a drunken man, who was allowed to come into the defendant's depot. The wife had purchased a ticket and was waiting for a train. The husband was acting as escort and had no intention

of becoming a passenger. It was held that the wife was a passenger, and as such, had a cause of action, but that the husband being a mere licensee had no right of action.

It might, with some show of reason, be said that the carrier in the exercise of its public calling, owes a duty to all those who are lawfully in the station, whether passengers or licensees. But the rule which requires a passenger carrier to protect against injuries by third persons has obviously no parallel and no origin in the law of tort. It is a comparatively recent application of the ancient duty to safeguard the passenger. R. Co. v. Burke (1876) 53 Miss. 200; Britton v. Ry (1883) 88 N. C. 536. It is paralleled only by the duty imposed upon the carrier of protecting its passengers from wanton assaults by its servants, whether the acts are within the apparent scope of authority or not. See 2 COLUMBIA LAW REVIEW, 488. It is no light responsibility, and should not be lightly imposed. The mere fact that the railroad is a carrier of passengers has not been considered a ground for extending its liability to the general public, beyond that of the innkeeper or the man who keeps a shop. The extraordinary duties. of the carrier are those owed to passengers, and, unless the dual relation of passenger and carrier exists, one must agree with the result reached in the principal case as far as the rights of the husband are concerned.

The adoption of this test as a working rule, however, is not without its difficulties. It raises the perplexing question of defining the term passenger. Nor have judicial dicta thrown much light on the subject. In the majority of cases, it would make not the slightest difference in the result reached, whether the person seeking redress were a passenger or a licensee. The carrier like the innkeeper or shopkeeper, is under a duty to keep its premises in safe condition. Where the cause of action arises from a failure to perform this duty, it matters not that the plaintiff is a passenger, and to call him such is entirely obiter. The analogy between freight and passengers, which is sometimes attempted, Webster v. Fitchburg R. Co. (1894) 161 Mass. 298, is in some degree helpful. In the case cited it is said: "One becomes a passenger on a railroad when he puts himself into the care of the railroad company to be transported, and is received and accepted as a passenger by the company. There is hardly ever any formal act of delivery of one's person into the care of the carrier, and

so the existence of the relation of passenger and carrier, is commonly to be implied from circumstances." Mr. Hutchinson in his work on Carriers (2d ed. sec. 562) after adverting to the fact that mere intention to become a passenger does not suffice, states the rule thus, "But if the intention and the act of the party combined are such as to give rise to an implied contract to carry, the duty and obligation of the carrier as such at once begin.' This is merely a different way of stating the rule as laid down in the Webster case (supra), for to imply a contract in fact is to assume from the facts that the carrier had accepted the passenger.

In Kentucky a statute provides that all railroad companies shall open their ticket offices and waiting-rooms for the passengers at least thirty minutes before the schedule time for the departure of trains. A recent case in that jurisdiction decides that an acceptance will not be presumed before that time, and that where a person is injured by third parties in the depot three hours before train time the carrier is not liable, Ill. Cent. R. Co. v. Laloge (Ky., 1902) 69 S. W. 795. The same result was reached in Phillips v. Southern R. Co. (1899) 124 N. C. 123, where a rule of the company required its waitingrooms at a station to be closed until thirty minutes before the departure of the next train.

In the principal case the facts justify the conclusion reached by the court that the wife was a passenger. Her right to recover was therefore well recognized. And since this extraordinary duty of protection against third persons, has been imposed only in favor of passengers, or at least those who have lawful business with the carrier as such-see Daniel v. R. Co. (1895) 117 N. C. 592-the further conclusion that the husband could not recover, must also be considered warranted.

AN AGENT'S LIABILITY IN TORT TO THIRD PERSONS for NonFEASANCE.—The case of Lough v. Davis (Wash. 1902) 70 Pac. 491, raises the question whether the nonfeasance of an agent toward his principal may also be such a nonfeasance toward a third person damaged thereby as to make him liable in tort to that third person. The ordinary rule that runs through the books seems to answer in the negative. It is said that an agent is liable in tort to third persons for misfeasance but not for nonfeasance. COKE, as counsel, suggested the distinction in Marsh v. Astry (1590) Cro. Eliz. 175, in a case where an under-sheriff failed to return a writ, but the court did not pass on its validity. Lord HOLT's dictum in Lane v. Cotton (1701) 12 Mod. 472, 488, that a post office clerk would not be liable to a third person for failure to act or nonfeasance, but would be for an improper act, or misfeasance, is the origin of the rule. The natural implication of this is that while a clerk would be liable if he lost a letter by carelessly knocking it into a waste box, he would not be if the wind blew it there and he failed to take the trouble to pick it out. Lord MANSFIELD in Whitfield v. Lord Le Despencer (1778) 2 Cowp. 754, 765, speaks of the responsibility of the clerk for the loss of letters without drawing any distinction between misfeasance and nonfeasIt was Justice STORY'S repetition of Lord HOLT's statement of the law that seems to have given it its wide currency. Story on Agency

ance.

$308. Possibly what its authors had in mind in their enunciation of the rule was merely that third persons do not get a right of action through an agent's violation of a duty owed solely to his principal. So limited, it would be perfectly sound, and it is to this class of cases that it has ordinarily been applied. Hill v. Caverly (1838) 7 N. H. 215; Calvin v. Holbrook (1848) 2 N. Y. 126. The natural implication, however, is that no failure by an agent to act, which is a nonfeasance as to his principal, can render the agent liable to a third person. There is no careful analysis of the meaning of the rule in those cases that adopt it, but they seem to accept this interpretation of it and assume it to be the law, without much attempt to justify it. On principle, it seems that the rule so interpreted cannot be justified. If one owes a duty to a third person to act, there is nothing in the collateral fact that he is an agent, to relieve him from liability to that third person from damage which his act would have averted. Nor on the ordinary principles of torts is there any difficulty in finding that one who is an agent may be under a duty not merely to his principal but also to a third person to do a certain act. It is true that one is not ordinarily bound to act to prevent damage to another, even though one might prevent it without risk or serious effort. Presumably one can stand by and watch a man be struck by a passing train, though a warning word would save him. On the other hand, if a person once does an act, and that act, though innocent in itself, so alters circumstances that it makes the safety of others dependent on his doing some further act, then his freedom to stand by is lost. He neglects the second act at his peril, and if damage follows, is liable in tort for his nonfeasance. Applying these principles to the case of an agent, it would seem that whenever in the course of his employment he creates a condition not dangerous at the time, but that will be dangerous unless he does some further act, he thereby puts himself under a duty to third persons to do that act, and that duty is no way affected by the fact that he is also under a duty to his principal to do the same act.

Further, if an agent undertake to perform a duty owed by his principal to third persons, knowing that in so entering on the employment and assuming control he is making the safety of such third perons dependent on his acting, he would seem, on the same principles, to owe them a duty to act. A railroad gateman would undoubtedly be liable to a person injured by his lowering the gates improperly. Would he not be liable to one injured by his failing to lower them at ali? So where an agent undertakes to make repairs and performs the work so carelessly that some one is injured he is personally liable. Should a like result be reached where he has assumed the task of keeping premises in repair but fails to do so? In the ordinary case his undertaking is merely by virtue of his contract with the owner and there is no duty owed to third persons. But if it also appears that the agent is in absolute and exclusive control of the premises, if, in other words, he has undertaken to act as owner of the premises, then, the principal case decides, he is under a common law duty-quite irrespective of his contract with his principal, to keep the premises. under his control in a safe condition. On principle the inquiry in every case should be whether the agent by his previous conduct had